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|The Honourable Justice
|Chief Justice of South Africa|
8 September 2011
|Appointed by||President Jacob Zuma|
|Preceded by||Sandile Ngcobo|
|Justice of the Constitutional Court|
|Appointed by||President Jacob Zuma|
|Judge President of the North West High Court|
October 2002 – October 2009
|Judge of the North West High Court|
June 1997 – October 2009
|Appointed by||President Nelson Mandela|
14 January 1961 |
Zeerust, South Africa
|Alma mater||University of Zululand
University of Natal
University of South Africa
Mogoeng was born on 14 January 1961 in Goo-Mokgatha (Koffiekraal) village near Zeerust in the North West Province of South Africa. He received a B.Juris from the University of Zululand in 1983 and a Bachelor of Laws from the University of Natal in 1985. Thereafter he began working for the government of Bophuthatswana as a High Court prosecutor in Mafikeng. He obtained a Master of Laws by correspondence from the University of South Africa in 1989 and left Bophuthatswana's civil service the following year to begin practice as an advocate. After a short period at the Johannesburg bar, Mogoeng returned to Mafikeng, where he practiced for six years.
In 1997, Mogoeng was appointed a judge of the North West High Court. He became a judge of the Labour Appeal Court in 2000 and the Judge President of the Mafikeng High Court in 2002. In 2009, in President Jacob Zuma's first raft of judicial appointments, Mogoeng was elevated to the highest court in South Africa, its Constitutional Court.
Nomination and appointment as Chief Justice
Less than two years later, in mid-2011, Mogoeng was nominated for appointment as the Chief Justice.
Mogoeng's nomination was extremely controversial, drawing strong criticism from right across the political spectrum, including from within Zuma's own Tripartite Alliance, as well as from the press, local and international civic organizations, legal academics and bar councils.
Mogoeng was one of the Constitutional Court's most junior members, having been appointed to it less than two years earlier, and having a relatively short and undistinguished judicial career at one of the smallest High Court divisions prior to that. In addition, Mogoeng was nominated ahead of the expected and hoped-for appointee, Deputy Chief Justice Dikgang Moseneke, who had served the Constitutional Court for nine years and as Deputy Chief Justice for six. Moseneke had already been overlooked once before, when Sandile Ngcobo was appointed Chief Justice, and his second snubbing was attributed to his Pan Africanist Congress background and remarks at a social occasion distancing himself from the ruling African National Congress (ANC). Mogoeng's own meteoric rise under the Zuma administration raised concerns about his independence. His nomination ahead of Moseneke reminded many of the notorious supersession by L. C. Steyn, a National Party favourite, of the brilliant and resolutely liberal Oliver Schreiner. Finally, whereas Moseneke had impeccable credentials during the struggle against apartheid, Mogoeng had been a prosecutor for a Bantustan.
Critics also pointed to Mogoeng's questionable track record during his time at the North West High Court. Besides his general lack of reported judgments, critics noted that he had failed to recuse himself in S v Dube, a case where his wife appeared as the state prosecutor.
But the most widespread and persistent concerns were about his judgments in rape and gender-violence cases. The Nobel Women's Initiative accused Mogoeng of invoking dangerous myths about rape and of victim-blaming. Of the many judgments cited by critics in which Mogoeng had been lenient on rapists and domestic assailants, three stood out:
- In State v Sebaeng Mogoeng reduced the sentence of a child rapist on the basis that he had been non-violent and indeed "tender" in raping the victim:
"One can safely assume that [the accused] must have been mindful of [the victim's] tender age and was thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop, notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and R30."
- The 2005 case of State v Moipolai involved the rape of a pregnant woman by her long-term boyfriend. Despite several aggravating factors, Mogoeng reduced the man's sentence from ten years' imprisonment to five because the rape was, he said, not as serious as if a stranger had committed it.
- Finally, in State v Mathebe, Mogoeng reduced the sentence, from two years' imprisonment to a fine of R4,000, of a man who had tied his girlfriend to his car and dragged her 50 meters along a dirt road. Mogoeng's explanation was that the man had been "provoked".
When these three judgments were raised in a BBC interview, Mogoeng compared his judgments in rape and sexual-violence cases to a game of football, saying it would be wrong to call Manchester United a bad team because it loses three matches in a season.
Criticism of Mogoeng's worryingly conservative values extended beyond his attitudes to rape and sexual violence. Legal academic Pierre de Vos said Mogoeng was clearly the most conservative member of the Constitutional Court. He pointed, first, to Mogoeng's ambivalence over gay rights. In Le Roux v Dey Mogoeng dissented, without giving reasons, from particular paragraphs of a judgment which said it was not defamatory to call someone gay. De Vos pointed, second, to Mogoeng's "deferential" approach to the executive in The Citizen v Robert McBride. In De Vos's view, Mogoeng's reasoning implies that freedom of expression does not permit one to criticize even "self-confessed human rights violators" like Robert McBride.
JSC interview and appointment
Moseneke, as the country's Acting Chief Justice pending a permanent appointment, chaired the Judicial Service Commission (JSC) when it interviewed Mogoeng to determine his suitability. Mogoeng was prickly throughout, having to apologize to Moseneke at one point for lashing out at one of his questions. This, and his unconvincing answers to his critics, hardly quelled the public's concerns about his judicial temperament.
Despite all this, Mogoeng's appointment was recommended by the JSC and confirmed by President Zuma on 8 September 2011. The JSC's decision to appoint Mogoeng, despite his myriad critics, coupled with the partisan conduct of the JSC's political appointees during his interview, suggested to some that the JSC had been captured by political interests.
Criticism of Mogoeng's suitability, and of his close ties with the Zuma administration, have continued since. He has been dubbed "the Chief Justice who doesn't write".
Mogoeng is a lay preacher in the Pentecostal Winners' Chapel. He attributed the criticism over his nomination and appointment to his Christian faith. But in Mogoeng's view, stated at his JSC interview, God wanted him to be Chief Justice.
Concern about Mogoeng's religious conservatism did not abate during his tenure. In March 2012 he was publicly criticised for requesting judges to attend a leadership conference hosted by Christian evangelist John C. Maxwell, raising concerns about the separation of church and judiciary. And in May 2014 he gave a speech at Stellenbosch University arguing that religion should infuse the law to a greater extent, "starting with the Constitution". He quoted liberally from the Bible, compared the three branches of government to the Holy Trinity and railed against social evils like "fornication". Mogoeng's speech sparked a media furore, in response to which he sought to offer clarification. The resulting press conference seemed to confirm rather than allay the media's fears. And Mogoeng's religious fulminations have also found their way into his judgments: in McBride, for example, he railed against the use of "foul language" and South Africa's "being denuded of moral standards", and cited the Bible.
|Chief Justice of South Africa
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- Le Roux and Others v Dey (2011) ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC).
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